Opinion
(Filed 21 March, 1905.)
Telegram — Damages — Evidence.
Where the plaintiff delivered to the defendant the following telegram: "Send by express four gallons of corn. Mint's Siding. Rush. Raft hands," and his name was changed by defendant in transmission, and the sendee did not send the whiskey, it was error to instruct the jury that the plaintiff could recover for expenses incurred in payment of his hands, and in sending to the telegraph and express offices, there being no evidence that the whiskey would have been sent if the error had not been made, nor that the defendant at the time of accepting the message had any notice of the purpose for which the whiskey was wanted, nor of the probable consequence of the failure to get it.
ACTION by T. J. Newsome against the Western Union Telegraph Company, heard by Ferguson, J., and a jury, at May Term, 1904, of SAMPSON. From a judgment in favor of the plaintiff, the defendant appealed.
No counsel for plaintiff.
R. C. Strong and F. H. Busbee Son for defendant.
The plaintiff delivered to defendant for transmission (514) the following telegram: "Send by express four gallons of corn. Mint's Siding. Rush. Raft hands. T. J. Newsome." This message when delivered to sendee purported to be signed "T. J. Sessoms." The sendee, not knowing any such party, did not send the whiskey. This is an action for damages, the complaint alleging that the plaintiff had accumulated timber and rosin at his place of business to be rafted to Wilmington, on the first full freshet (which was then up); that raft hands would not work without whiskey; that by reason of failure to get it the hands refused to work; that the freshet went down, and before it rose again rosin had depreciated in value to plaintiff's great loss; and, besides, the plaintiff, in anticipation of getting the whiskey, drew drafts on faith of above stores to be shipped, which stores not arriving in Wilmington on that freshet, caused said drafts to be protested, to damage of plaintiff's credit and business standing. These damages were disallowed by the court, doubtless because too remote and speculative, and the plaintiff is not appealing.
The defendant excepted and appeals because the court told the jury that plaintiff could recover whatever expense he incurred (in consequence of the error of defendant) in payment of his hands and his expense in sending to Clinton and Mint's Siding. This was error, for two reasons: first, it did not appear in the evidence that the whiskey would have been sent if the message when received by sendee had had the plaintiff's name properly signed thereto; nor does it appear that the defendant had any express notice of the purpose for which the whiskey was ordered and the probable consequences which would result from its negligence, and the face of the message did not itself put the defendant on notice of such facts. The words "four gallons corn" might possibly as a local expression, have been understood by defendant's agent to mean that quantity of whiskey, but there was no notice to defendant of the specific purpose for which the whiskey was needed nor of (515) the probable consequences of failure to get it. The sendee, from the course of his dealings, might have understood the purpose for which the whiskey was to be used from the wording of the telegram, but there is no evidence that the defendant knew.
It is true, it is in evidence that after the failure of the whiskey to arrive the plaintiff went to the defendant's office and asked to have the telegram repeated or traced, tendering the money, and at the same time stated the purposes for which the whiskey was needed and his probable loss from its not being received. Failure of the defendant to do this as requested was negligence, and it would be liable for any direct damage from failure to repeat or trace the telegram, but there is no evidence as to the amount of such damages, if any, and, besides, it is not shown that the whiskey would have been sent if the telegram had been repeated.
Error.
Cited: S. c., 144 N.C. 178; Barnhardt v. Drug Co., 180 N.C. 436, 437.
(516)